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District Court 9 November 2022

Trad v Department of Education (NSW)

[2022] NSWDC 759

Other
CRIMINAL LAW APPEALS AND REVIEW CONVICTION APPEAL FROM LOCAL COURT

Citation: Trad v Department of Education (NSW) [2022] NSWDC 759
Court: District Court of New South Wales
Date: 9 November 2022
Judge: McHugh SC DCJ

Background

The appellant was the "nominated supervisor" of a family day care service operated under the Children (Education and Care Services) National Law (NSW). A family day care educator employed by the approved provider conducted care at a residential premises in Randwick. On 4 March 2019, an infant in her care was found unresponsive in a bassinet and was subsequently pronounced dead. The baby had been placed in the bassinet with a bib around his neck, a loose sheet, and a pillow, and had not been observed for approximately 35 to 45 minutes.

The appellant was convicted in the Local Court of three offences: failing to ensure every reasonable precaution was taken to protect children from harm (s 167(2) of the National Law); failing to take reasonable steps to ensure children's sleep and rest needs were met (cl 81 of the Regulations); and failing to ensure adequate supervision of children at all times (s 165(2) of the National Law). She was convicted, fined, and ordered to pay professional costs.

The appellant appealed all three convictions to the District Court under the Crimes (Appeal and Review) Act 2001 (NSW). The central question across each charge was whether the prosecution had established, beyond reasonable doubt, that the appellant had failed to meet her statutory obligations as nominated supervisor.

  • Whether a nominated supervisor could be held criminally liable for the spontaneous acts or omissions of a family day care educator where the supervisor was not present at the premises and had no knowledge of the circumstances on the day.
  • Whether cl 81 of the Regulations (sleep and rest needs of children) was directed at children's safety, or instead at the provision of appropriate rest opportunities, and whether it applied to the circumstances charged.
  • Whether s 165(2) (adequate supervision at all times) imposed an obligation on a nominated supervisor who was not required, and was not present, at the relevant premises.
  • Whether the appellant had taken every reasonable precaution under s 167(2) by ensuring the educator was qualified and had received training, even though the educator failed to follow safe sleep procedures.

Decision

Sequence 2 (cl 81, sleep and rest): The District Court accepted the appellant's submission that cl 81 is not a safety provision in the same sense as ss 165 and 167 of the National Law. The clause is directed at ensuring children have adequate and appropriate sleep and rest, not at preventing physical harm or hazards. The conviction on this count was set aside.

Sequence 3 (s 165(2), adequate supervision): The court accepted that a nominated supervisor is not required to be physically present at a family day care premises at all times. Under s 162(1) of the National Law, an approved provider or another responsible person may fulfil the presence requirement. The charge was based solely on events of a particular day when the appellant was absent, had not attended the premises since January 2019, and had no knowledge of what occurred. In those circumstances the court was not satisfied the prosecution had established the elements of the offence.

Sequence 1 (s 167(2), reasonable precautions): This charge required the prosecution to prove beyond reasonable doubt that the appellant failed to ensure every reasonable precaution was taken to protect children from harm. The court found that the appellant had ensured the educator was qualified and had provided training and documentation on safe sleep practices. The educator herself knew the proper procedures and had acknowledged that knowledge. In those circumstances, the court found the appellant had discharged her obligation under s 167(2). The tragedy arose from what the court described as the momentary inadvertence of the educator in failing to follow procedures she already knew. Criminal liability could not attach to the nominated supervisor for that failure.

All three convictions were set aside on appeal.

Orders Made

  • All three convictions, findings of guilt, and fines imposed by the Local Court were quashed.
  • The appeal against conviction was allowed on all grounds under s 20(1)(a) of the Crimes (Appeal and Review) Act 2001 (NSW).

Key Takeaways

  • A nominated supervisor's criminal liability under s 167(2) of the Children (Education and Care Services) National Law (NSW) turns on whether she took every reasonable precaution available to her, not on whether harm ultimately occurred. Ensuring an educator was qualified and trained may satisfy that obligation even where the educator then fails to apply her knowledge.

  • The District Court drew a clear distinction between cl 81 of the Regulations (which concerns the provision of adequate sleep and rest for children) and the safety-focused obligations in ss 165 and 167 of the National Law. A charge framed in safety terms may not be appropriate under cl 81.

  • Under s 162(1) of the National Law, a nominated supervisor is not required to be personally present at all times at a family day care premises. Criminal liability for failures of supervision cannot rest solely on the supervisor's absence from premises where her presence was not required.

  • Where a family day care educator possesses full knowledge of proper safe sleep procedures and then departs from those procedures in a manner the nominated supervisor could not have foreseen, that departure may constitute the educator's own inadvertence rather than a failure by the supervisor.

  • Conviction appeals to the District Court under the Crimes (Appeal and Review) Act 2001 (NSW) proceed as rehearings. The prosecution's burden of proving each element of an offence beyond reasonable doubt remains entirely unchanged on appeal.

Legislation and Cases Referenced

Legislation:
- Children (Education and Care Services) National Law (NSW), ss 162, 165, 167
- Education and Care Services National Regulations (NSW), cll 78, 79, 81, 103
- Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 20

Cases:
- The Commonwealth v Introvigne [1982] HCA 40
- Inspector Foster v A B John Peel Pty Ltd t/as Valley Machinery Service [2003] NSWIRComm 116